Coombs v. Darling

• Decision Date: 09 May 1933
• Citation: 116 Conn. 643,166 A. 70
• Court: Connecticut Supreme Court
• Parties: COOMBS v. DARLING et al.

166 A. 70

116 Conn. 643

COOMBS v. DARLING et al.

Supreme Court of Errors of Connecticut.

May 9, 1933

Appeal from Superior Court, Fairfield County; Frank P. McEvoy Judge.

Action by Lulu T. Coombs against Jane Darling and another for damages to personal property, alleged to have been caused by defendants' negligence in the operation of motor vehicles. From a judgment for defendants after trial to the court, plaintiff appeals.

No error.

John D. Walker, of Stamford, for appellant.

Hugh J. Lavery and George N. Finkelstone, both of Bridgeport, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, Judge.

The appellant was operating her automobile easterly on the public highway in Greenwich on November 3, 1930, while a truck of the defendant Briar Hills Nursery, Inc., was being operated westerly on the same highway, and directly behind the truck the defendant Jane Darling was operating her automobile. The last-named defendant, in attempting to pass the truck, turned to the left and collided with the plaintiff's car, causing a damage to the latter which the trial court fixed at $1,000. The court held the Briar Hills Nursery, Inc., free from blame, and that the damage was caused solely by the negligence of the defendant Jane Darling. Judgment was, however, rendered in her favor for the reason that the action was not begun within one year after the injury was caused, and thus was barred by the statute of limitations, and from this judgment the present appeal was taken. This defendant was and is a nonresident having her home in New York City, but from the date of the accident to the time this action was brought she came into this state three days each week except during the vacation periods, to teach in a Connecticut school. Service of the complaint was made upon the motor vehicle commissioner of this state pursuant to General Statutes, § 5473, which appears in a footnote to Hartley v. Vitiello, 113 Conn. 74, at page 76, 154 A. 255. The accident occurred November 3, 1930 and the complaint was served December 24, 1931.

This section was first adopted as Public Acts of 1925, c.122. Previous to its enactment the only method of securing a personal judgment against a nonresident was by service upon him while within the state. The statutes of limitation, then as now, provided that no action to recover damages for injury to the person or for injury to personal property caused by negligence, shall be brought but within one year from the date of the injury or neglect complained of. General Statutes, § 6015. There is a further statute applicable to the various limitations fixed for specific actions provided for in previous sections, including the one to which we have just referred, which reads as follows: " In computing the time limited in the several cases aforesaid, the time during which the party, against whom there may be any such cause of action, shall be without this state, shall be excluded from the computation." General Statutes, § 6022. The purpose of this latter section was " to preserve the right of action during the absence of the defendant when it was impossible to serve him with process in an action in personam." Clegg v. Bishop, 105 Conn. 564, 569, 136 A. 102, 104. Under these sections, therefore, a cause of action against a nonresident would not be barred until he had been within this state for a period or periods aggregating one year without the service of process upon him. Clegg v. Bishop, supra. The question presented by this case is as to the effect of these provisions of the statutes as regards an action begun under the provisions of section 5473.

The obvious purpose of this section was to afford a means by which the equivalent of personal service might be made upon a nonresident although he was not actually within the state.

There are no limitations of time in the Act of 1925, c. 122, Gen. St. § 5473, within which the process must be served, and, since the regular limitation of one year by section 6015 applies in terms to all actions of this character, that period of one year fixes the limit of time for such service.

Where powers were given to a railroad company by special charter with no provision limiting the time for their exercise, it was held by this court that the general limitation fixed by existing statutes was operative. Hartford & Connecticut Western R. Co. v. Montague, 72 Conn. 687, 45 A. 961.

We have also held that, there being no provision in this statute for continuance, that subject is controlled by existing statutes. " The general assembly is always presumed to know all the existing statutes, and the effect that its action or...